Feds black out nearly all emails on who influenced proposal to 'gut' charter school program

A day after Congress approved $440 million for a charter school grant program that thrived in the prior two administrations, the Biden administration proposed funding criteria that would allegedly cripple the program and benefit teachers unions.

The Education Department is now fighting one of its former lawyers in court to keep hidden how that proposal was developed in spring 2022, including who had the feds' ear.

The agency blacked out 570 of 574 pages in the most recent document production it turned over in a seven-month-old Freedom of Information Act lawsuit by the Bader Family Foundation, whose trustees include former DOE attorney Hans Bader. 

The only visible pages feature June 28-30, 2022 emails between Charter Schools Program Director Anna Hinton and a wide variety of DOE officials. They suggest the final proposed rules were headed to the Office of Management and Budget for review after officials discussed redacted issues with White House Domestic Policy Council.

Every withheld page cites FOIA exemption 5, which covers "inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency," but not which specific privilege DOE is asserting in each instance.

"Agencies usually withhold the lion’s share of interesting internal communications" under the deliberative-process privilege, which "has become the exception that devours the rule of transparency created by FOIA," Bader wrote in a blog post.

The National Archives' FOIA Advisory Committee voted unanimously this summer to ask the Justice Department to publish guidance that tells agencies to identify the specific privilege asserted under exemption 5, which the committee said was invoked more than 65,000 times in fiscal 2022.

The Biden administration's charter grant proposal, which gave public schools a veto over competition and required district "over-enrollment" for charters to qualify, provoked criticism from typical allies. 

Democratic Colorado Gov. Jared Polis, who founded a charter network, blasted the feds in a Washington Post op-ed saying the changes would "gut" the program he helped "update and greatly expand" as a congressman. 

The Post editorial board called them a "sneak attack" because of the short comment period and lack of consultation, and said the "onerous" requirements would most hurt black- and Latino-led schools. 

The final rules issued that summer, following more than 25,000 public comments, were less strict, according to an Education Week analysis. Program manager Hinton laid out the revisions, including "[e]ncouraging – but not requiring" charters to get public school collaborators and letting charters cite more than over-enrollment as evidence of need.

The foundation filed a FOIA request in February for charter-related communications since March 2022 among a wide variety of DOE officials, outside organizations and individuals, including the National Education Association and its President Becky Pringle and American Federation of Teachers and its president, Randi Weingarten. 

Pringle and Weingarten are known for their outsized influence in the Biden administration, having exchanged chummy texts with then-CDC Director Rochelle Walensky as the agency developed COVID-19 school reopening guidance in 2021 that turned out to favor unions.

The foundation sued DOE in April after it missed the statutory deadline for responding to the request, citing "unusual circumstances" but no anticipated compliance date.

A previous 547-page production revealed that the Office for Civil Rights, in which Bader served, played a significant role in the development of the rules, though the content of the discussion is redacted under exemption 5.

OCR is not an expert in charter schools but has a reputation under Democrats for pushing the envelope on race and gender identity, and not always through the proper regulatory channels.

Two-time OCR chief Catherine Lhamon is mentioned four times as reviewing proposed wording in the charter grant rules. That includes "diversity language" – an email subject line that is inconsistently redacted under exemption 5 – which might refer to the proposal's requirement that charter schools not worsen local racial segregation.

Under President Obama, Lhamon was known for using non-binding Title IX guidance to coerce colleges to tilt sexual misconduct proceedings against accused students, overwhelmingly male, causing years of headaches for colleges in lawsuits by those students. 

She rejected the presumption of innocence in her second confirmation hearing, squeaking through on Vice President Harris's tiebreaking vote, and is likely to reimpose the fundamentals of her sexual misconduct guidance via rulemaking in the next year.

Lhamon's policy chief, Monique Dixon, also shows up dozens of times in the production, discussing her extensive meetings with the Office of General Counsel over diversity language.

"Thank you Monique, I know this is not an easy lift and really appreciate it," Jessica Cardichon, then-deputy assistant secretary for pre-K-12 education, told Dixon on May 26.

"I like the OCR revised sentence," Deputy Chief of Staff for Policy and Programs Scott Sargrad wrote Feb. 28. Brenda Calderon and James Lane in the Office of Elementary and Secondary Education agreed.

Cathy Grimes-Miller, then an OGC attorney, apparently had a problem with some redacted language under consideration before the proposal went live. Dixon responded March 1, "the OCR team, including Catherine Lhamon […] are comfortable with deleting the proposed language for now." 

The production suggests officials were concerned by the critical Post editorial and an analysis by the influential Thomas B. Fordham Institute, which said the proposed requirements were "not in the statute" and would make DOE "a national charter school board."

One particular Fordham passage stands out, accusing the feds of relying on "vestiges of red-lining" by tying charter eligibility to district enrollment and demographics. Hinton sent both articles around to officials, though it's unclear what if anything changed because of them.

U.S. District Judge Dabney Friedrich started getting impatient with the feds' slow pace in the litigation this fall.

She ordered DOE to explain by Oct. 9 "why its components have not completed the required searches and thus cannot estimate the total number of records that are potentially responsive to the defendant's request," and why each couldn't turn over at least 150 pages a month.

DOE again missed its deadline, Friedrich noted in an Oct. 13 order to show cause.

Its Oct. 18 response said DOE's five components had together found over 7,500 records but all needed to be vetted by "the single Department FOIA counsel, who has been processing records at a rate of 500 pages per month." Friedrich agreed the same day not to increase its processing rate.

DOE didn't respond to Just the News queries to explain the asserted privileges in the 570 pages of redactions and why OCR was so heavily involved in crafting a charter school rule.